IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Patty L. Shackleford,

Plaintiff,

v. Case No. 2:12-cv-398

Carolyn W. Colvin,

Acting Commissioner of

Social Security,

Defendant.

ORDER

Plaintiff, Patty L. Shackleford, brings this action under 42

U.S.C. §§ 405(g) for review of a final decision of the Commissioner

of Social Security (“Commissioner”) denying her applications for

disability insurance benefits and supplemental security income. 

This matter is before the court for consideration of plaintiff’s

June 21, 2013, Objections (Doc. 21) to the June 6, 2013, report and

recommendation of the magistrate judge (Doc. 20), recommending that

the court affirm the decision of the Commissioner. For the reasons

stated below, the court overrules plaintiff’s objections and adopts

the magistrate judge’s report and recommendation.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

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The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the

reviewing court might arrive at a different conclusion. Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence

exists when ‘a reasonable mind could accept the evidence as

adequate to support a conclusion [and] . . . presupposes that there

is a zone of choice within which the decision-makers can go either

way, without interference by the courts.’” Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation

omitted). Even if supported by substantial evidence, however, “‘a

decision of the Commissioner will not be upheld where the

[Commissioner] fails to follow its own regulations and where that

error prejudices a claimant on the merits or deprives the claimant

of a substantial right.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d

647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478

F.3d 742, 746 (6th Cir. 2007).

II. Objections

A. Weight Accorded to Dr. Hamill’s Opinions

Plaintiff first objects to the magistrate judge’s evaluation

of the decision of the administrative law judge (“ALJ”) to assign

“little weight” to the opinions of Dr. J. Mark Hamill, M.D.,

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plaintiff’s treating psychiatrist. See PAGEID 75.

The opinion of a treating source must be given controlling

weight if that opinion is “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and is “not

inconsistent with the other substantial evidence in [the] case

record.” 20 C.F.R. §404.1527(c)(2). Even if the opinion of a

treating source is not entitled to controlling weight, an ALJ is

nevertheless required to determine how much weight the opinion is

entitled to by considering such factors as the length, nature and

extent of the treatment relationship, the frequency of examination,

the medical specialty of the treating physician, the extent to

which the opinion is supported by the evidence, and the consistency

of the opinion with the record as a whole. 20 C.F.R.

§§404.1527(c)(2)-(6), 416.927(c)(2)-(6); Blakley v. Comm’r of Soc.

Sec., 581 F.3d 399, 406 (6th cir. 2009); Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004).

An ALJ must also provide “good reasons” for discounting the

opinion of a treating source, i.e., reasons that are “‘sufficiently

specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the

reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d

234, 242 (6th Cir. 2007)(quoting Soc. Sec. Rul. 96-2p, 1996 WL

374188 at *5). This special treatment afforded to the opinions of

treating providers recognizes that

“these sources are likely to be the medical professionals

most able to provide a detailed, longitudinal picture of

[the claimant’s] medical impairment(s) and may bring a

unique perspective to the medical evidence that cannot be

obtained from the objective medical findings alone or

from reports of individual examinations, such as

consultative examinations or brief hospitalizations.”

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Wilson, 378 F.3d at 544 (quoting 20 C.F.R. §404.1527(d)(2)).

In the decision of April 19, 2011, the ALJ commented on the

first three factors, including the length, nature and extent of the

treatment relationship, the frequency of examination, and the

medical specialty of the treating physician. The ALJ noted that

Dr. Hamill was plaintiff’s treating psychiatrist, and that

plaintiff’s mental health treatment consisted of intermittent

visits which began on December 4, 2008. PAGEID 72. The ALJ noted

that Dr. Hamill evaluated plaintiff on December 4, 2008, and that,

based on plaintiff’s subjective responses, Dr. Hamill gave the

diagnosis of bipolar disorder, manic, severe with psychotic

features, and prescribed the mood stabilizer Abilify, and reduced

plaintiff’s Wellbutrin SR. PAGEID 67. The ALJ further remarked:

The record indicates that the claimant has had

intermittent medication management appointments with Dr.

Hamill as well as counseling appointments with various

mental health counselors at Scioto Valley Mental Health

Center. (EX B41F). The most recent treatment records

from Dr. Hamill, on September 14, 2010, indicate that the

claimant had not reported any psychotic symptoms and her

medication was working okay for her. (EX B44F, pg 2). 

Dr. Hamill also noted a diagnosis of schizoaffective

disorder. Id.

PAGEID 67.

The ALJ also addressed the extent to which the opinion is

supported by the evidence, and the consistency of the opinion with

the record as a whole. The ALJ noted that Dr. Hamill’s diagnosis

was based on plaintiff’s subjective responses to his questions

during the evaluation. PAGEID 67. The ALJ remarked that plaintiff

never had a psychiatric hospitalization and “has not had the type

of treatment one would expect for someone whose alleged symptoms

include auditory hallucinations.” PAGEID 72. The ALJ also noted

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that although plaintiff was forty-eight years old at the time of

the hearing, she had only received substantive mental health

treatment with a psychiatrist in the last two years despite her

complaints of auditory hallucinations, and that prior to seeing Dr.

Hamill, her mental health treatment consisted of taking various

anti-depressant medications prescribed by her family physician. 

Id. The ALJ commented that “at least on one occasion, the claimant

was more concerned about her weight than in alleviating her mental

health symptoms. (EX B44F, pg 2).” Id.

After summarizing the opinion of Dr. Hamill concerning

plaintiff’s limitations, the ALJ stated:

I find that Dr. Hamill’s opinion is not supported by the

evidence in the record. Specifically, Dr. Hamill’s

opinion about the claimant’s extreme limitation in the

area of concentration, persistence, or pace contrasts

sharply with the other evidence of record, especially the

claimant’s activities of daily living where she cares for

at least five young grandchildren and an ailing daughter,

which renders it less persuasive. In addition, ... Dr.

Hamill almost exclusively relies on the claimant’s

subjective report of her symptoms and limitations. This

is even more disconcerting because the claimant does not

have a significant mental health treatment history

despite her extreme allegations of auditory

hallucinations. Also, the claimant admitted at hearing

that she omits material information about her symptoms to

Dr. Hamill for fear that he might change her medication. 

Lastly, while Dr. Hamill does have a treating

relationship with the claimant, the treatment history has

been brief and intermittent and primarily consists of

medication management. I give Dr. Hamill’s opinion

little weight.

PAGEID 74-75.

In reviewing the ALJ’s analysis of Dr. Hamill’s opinion, the

magistrate judge concluded:

The administrative law judge’s analysis is sufficiently

specific as to the weight given to Dr. Hamill’s medical

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opinion and the reasons for assigning that weight. 

Although the analysis of the individual factors may be

succinct, it is clear that the administrative law judge

considered each of the factors listed in 20 C.F.R.

§§404.1527(c)(2)-(6) and 416.927(c)(2)-(6); a formulaic

recitation of the factors is not required under the

circumstances. See Friend v. Comm’r of Soc. Sec., 375 F.

App’x 543, 551 (6th Cir. 2010)(“If the ALJ’s opinion

permits the claimant and a reviewing court a clear

understanding of the reasons for the weight given a

treating physician’s opinion, strict compliance with the

rule may sometimes be excused.”). Further, the

administrative law judge’s reasons for assigning “little

weight” to Dr. Hamill’s opinion are supported by

substantial evidence.

Because the administrative law judge correctly applied

the standards of the treating physician rule to her

evaluation of Dr. Hamill’s opinions, and because

substantial evidence supports her findings, the Court

finds no error with the Commissioner’s decision in this

regard.

Doc. 20, pp. 17-18.

This court agrees with the magistrate judge’s analysis and

conclusion that the ALJ correctly applied the standards of the

treating physician rule in evaluating Dr. Hamill’s opinions. The

ALJ cited “good reasons” for discounting Dr. Hamill’s opinions and

correctly applied the appropriate factors. The ALJ’s decision

sufficiently described the weight which the ALJ gave to Dr.

Hamill’s medical opinions and the reasons for that weight so as to

permit an informed review by this court. In addition, this court

concludes that the reasons the ALJ set forth for the weight she

assigned to Dr. Hamill’s opinion are supported by substantial

evidence.

B. Listing 1.02A

Plaintiff also objects to the conclusion of the magistrate

judge that the ALJ correctly determined that plaintiff does not

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meet the requirements of Listing 1.02. Plaintiff argues that the

evidence as a whole supports her argument that she cannot walk a

block at a reasonable pace on rough or uneven surfaces.

Listing 1.02 requires, under appropriate circumstances, a

finding of disability based on a major dysfunction of a joint:

Major dysfunction of a joint(s) (due to any cause):

Characterized by gross anatomical deformity (e.g.,

subluxation, contracture, bony or fibrous ankylosis,

instability) and chronic joint pain and stiffness with

signs of limitation of motion or other abnormal motion of

the affected joint(s), and findings on appropriate

medically acceptable imaging of joint space narrowing,

bony destruction, or ankylosis of the affected joint(s). 

With: A. Involvement of one major peripheral weightbearing joint (i.e., hip, knee, or ankle), resulting in

inability to ambulate effectively, as defined in

1.00B2b[.]

20 C.F.R. Pt. 404, Subpt. P, Appx. 1, §1.02.

Listing 1.00B2b states:

(1) Definition. Inability to ambulate effectively means

an extreme limitation of the ability to walk; i.e., an

impairment(s) that interferes very seriously with the

individual’s ability to independently initiate, sustain,

or complete activities. Ineffective ambulation is

defined generally as having insufficient lower extremity

functioning (see 1.00J) to permit independent ambulation

without the use of a hand-held assistive device(s) that

limits the functioning of both upper extremities.... (2)

To ambulate effectively, individuals must be capable of

sustaining a reasonable walking pace over a sufficient

distance to be able to carry out activities of daily

living. They must have the ability to travel without

companion assistance to and from a place of employment or

school. Therefore, examples of ineffective ambulation

include, but are not limited to, the inability to walk

without the use of a walker, two crutches or two canes,

the inability to walk a block at a reasonable pace on

rough or uneven surfaces, the inability to use standard

public transportation, the inability to carry out routine

ambulatory activities, such as shopping and banking, and

the inability to climb a few steps at a reasonable pace

with the use of a single hand rail. The ability to walk

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independently about one’s home without the use of

assistive devices does not, in and of itself, constitute

effective ambulation.

20 C.F.R. Pt. 404, Subpt. P, Appx. 1 §100B2b.

The ALJ determined, based on the available medical evidence,

that plaintiff’s osteoarthritis of the right knee did not meet or

equal the requirements in Listing 1.02. PAGEID 68. The ALJ

further found that the evidence concerning plaintiff’s right knee

and degenerative disc disease involving the cervical, thoracic and

lumbar spine did not demonstrate that plaintiff had the degree of

difficulty in ambulating as defined in Listing 1.00B2b. Id.

The magistrate judge found that there was substantial evidence

in the record to support the ALJ’s determination that plaintiff

does not meet Listing 1.02. Doc. 20, p. 20. The magistrate judge 

noted that plaintiff had knee surgeries in January and February

2009, and further observed that while some treatment records dated

2008-2010 indicated that plaintiff experienced knee pain before and

after these surgeries, in other records during this period

plaintiff was reported as walking with a normal gate and without

difficulty. Id. The magistrate judge also observed that there was

no evidence that plaintiff had ever used a walker, two crutches, or

two canes, and that there was no medical opinion in the record that

plaintiff was unable to walk to the degree required by the listing

or that her combination of impairments met the listing. Doc. 20,

p. 21.

The magistrate judge then looked to evidence concerning

plaintiff’s daily activities which suggested that plaintiff was

able to ambulate effectively, including the fact that plaintiff

climbs stairs, walks four to five blocks, organizes her house for

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seven to eight hours per day, does dishes and laundry, cooks

dinner, takes out the trash, bends to put items in cabinets, drives

to the grocery store weekly, babysits with her five grandchildren

and takes them to doctor’s appointments. Id. The magistrate judge

also noted that plaintiff helped her daughter move for fourteen

hours in a single day in 2009. Id. The magistrate judge concluded

that plaintiff had not shown that she satisfies the requirements of

Listing 1.02, in that “there is no evidence that plaintiff has an

‘extreme limitation of the ability to walk’ that ‘interferes very

seriously with [her] ability to independently initiate, sustain, or

complete activities.’” Doc. 20, p. 22.

In her objections, plaintiff disputes the finding of the

magistrate judge that “[t]here is also no evidence to support

plaintiff’s argument ... that she cannot ‘walk a block at a

reasonable pace on rough or uneven surfaces.’” Doc. 20, p. 22. 

Plaintiff relies on a physical capacity evaluation completed by Dr.

Frazier on December 7, 2005, on which he noted that plaintiff could

stand no more than five minutes before needing to sit, and that

plaintiff must “use an assistive device (i.e. cane)” to walk and

balance. See PAGEID 851. This exhibit says nothing about

plaintiff using “a walker, two crutches or two canes,” nor does it

indicate that she was unable “to walk a block at a reasonable pace

on rough or uneven surfaces” as required to satisfy Listing

1.00B2b. Further, this evaluation was completed several years

before plaintiff’s knee surgeries in 2009. The magistrate judge

cited more relevant post-surgery evidence that plaintiff was able

to ambulate without difficulty following her knee surgery. Doc.

20, p. 20.

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The court agrees with the finding of the magistrate judge that

there is no evidence that plaintiff has an “extreme limitation of

the ability to walk” that “interferes very seriously with [her]

ability to independently initiate, sustain, or complete

activities.” The court concludes that the ALJ’s decision that

plaintiff failed to satisfy the requirements of Listing 1.02 is

substantially supported by the evidence of record.

III. Conclusion

Having reviewed the record de novo, the court determines that

there is substantial evidence supporting the ALJ’s determination

that plaintiff is not disabled, as defined in the Social Security

Act. Accordingly, the court overrules plaintiff’s objections (Doc.

21) and adopts the magistrate judge’s report and recommendation

(Doc. 20). The Commissioner’s decision is affirmed, and this

action is dismissed. 

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the clerk shall

enter final judgment affirming the decision of the Commissioner and

dismissing this action. 

It is so ordered.

Date: August 7, 2013 s/James L. Graham 

 James L. Graham

 United States District Judge 

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